Elizabeth Brake (2010). Minimal Marriage: What Political Liberalism Implies for Marriage Law. Ethics 120 (2). (Direct link)
Recent defenses of same‐sex marriage have invoked the liberal doctrines of neutrality and public reason, and similar reasoning has been extended to polygamy.1 Such reasoning is generally sound but does not go far enough in examining the implications of political liberalism for marriage. This article takes to their appropriate conclusion the implications of political liberalism’s commitment to excluding from the public forum arguments which depend on comprehensive doctrines.
It might be thought that excluding arguments depending on comprehensive doctrines implies the abolition of marriage. Some defenses of marriage, including same‐sex marriage, have grounded marriage law in supposed goods of marital relationships.2 Given the diversity of, and controversy over, conceptions of good relationships, such rationales for marriage appear to depend on particular comprehensive doctrines. However, I will argue that there is a rationale within public reason for a legal framework supporting nondependent caring relationships between adults (‘marriage’) and that this framework is a fundamental matter of justice.
The arguments in this article dovetail with a number of feminist concerns: the oppressive effects of state promotion of gendered marriage norms, the false neutrality of purportedly neutral policy, and the failure to recognize care as a political good. One aim of this article is to give a partial response to feminist critics of liberalism by showing that a thorough and open‐minded application of neutrality and public reason can yield a marriage law which no longer arbitrarily privileges some members of society.3 This, of course, does not show that feminists should accept political liberalism, merely that, properly interpreted, it can eliminate bias in this instance.